High Court has again placed us into another constitutional mess

By Kamotho Waiganjo

It would be reckless to dismiss the ruling by the High Court on the Kadhis’ courts as inconsequential and of no effect on the review process. It is true that technically, it neither stops the process nor makes any declarations on the provisions of the Proposed Constitution relating to the Kadhis’ courts.

 But by delegitimising the entire Kadhis’ courts system, which the draft replicates, the High Court has yet again placed us into another constitutional quandary. What are the implications of retaining the provisions in the Proposed Constitution whilst the principle under which they exist in the current Constitution has been declared illegitimate?

For both the Day and Nighttime ‘Nos’, this ruling could not have come at a better time. It energises the ‘No’ campaign and places more hurdles on the ‘Yes’ campaign, which is still reeling from ‘insertiongate’ and the discordant noises in the ‘Yes’ campaign.

The ruling however makes it critical for us to interrogate the role of the courts in the constitutional reform programme. Without crossing sub judice boundaries, one can make certain irrefutable observations. This case continues the unfortunate tradition of the Kenyan Judiciary vis-a-vis the reform programme.

In the years the country has been struggling for a new constitutional order, the courts have consistently granted rulings whose effect is to encumber the process where the Judiciary is prejudiced in a draft.

In 2003, the Bomas draft required the vetting of judges. The courts ruled against the process in the (Rev Timothy) Njoya case. In 2005, the Wako draft did not require vetting of judges. The court supported the process in the Yellow movement case. In 2010, the draft requires a vetting process. The judges have for all practical purposes ruled against the draft.

My intention is not to cast aspersions on the credibility of the judges who make these rulings. In any event, judges do not have to rule in a manner that is acceptable to the public so that their judgments are legitimate.

But in the public eye, this predictability, this consistency when their interests are at stake raises serious issues of credibility. Justice, it is said, not only needs to be done; it needs to be seen to be done.

It is in light of this history that Parliament shielded the current review process from the High Court and instead appointed a special constitutional court to deal with all litigation relating to the review process.

The integrity of the ruling in this case would not have been compromised if it had emanated from this court.

The ruling by the judges makes it even more critical that the new constitution is passed. It is unconscionable that a panel of three individuals should have the power to dismantle institutional frameworks that have such fundamental legal, political and social implications for the entire nation. This role must be left to the people or, at the very worst, to a Supreme Court whose independence, competence and credibility is not in question, be it in reality or perception.

—The writer is an advocate of the High Court